Judge Robert H. Bork, RIP

Charlotte Hays

Judge Robert H. Bork, who died yesterday at the age of 85, was one of the great legal minds of our day—and also a witty and decent man.

It was a great loss that Judge Bork was not confirmed to serve on the Supreme Court when President Reagan nominated him in 1987. The ferocious smear campaign against him deprived the Court of a great jurist and was a harbinger of a nastiness that is now taken for granted in Washington.

Liberals by and large admitted that nobody was more qualified than Judge Bork to sit on the high court—they just didn’t like his views. Judge Bork was a man of courage and conviction. Jeffrey Lord has a good account of the judge’s courage when he served as solicitor general in the embattled Nixon administration.

Judge Bork believed, as the Wall StreetJournal points out this morning, that judges should look to the Constitutional’s original intent, not their own opinions and philosophies, in making rulings. Legislatures were supposed to legislate and judges to judge based on the Constitution in Judge Bork’s view.

This comes across delightfully in something he wrote in 1999 when the courts were being used to stop people from smoking:

At least when the nation decided to end the "scourge" of alcohol, it had the political courage to ratify the 18th Amendment making Prohibition the law of the land.

Not so in these pusillanimous days. Now, as then, we are in the throes of a reform campaign waged with the vigor and self-righteousness of the bluenoses of old. This time their target is cigarettes, not whiskey. But our politicians no longer have the courage to legislate the end of what they condemn. Instead, they resort to lawsuits in an effort to end smoking by destroying the tobacco companies. The end, apparently, justifies any means, no matter how fraudulent. . . .

The real damage done by this noxious mixture of governmental greed and moralism is not to the tobacco companies' shareholders (they should have seen it coming and got out a long time ago) but to what we still, with increasing irony, call the rule of law.

This appeared in a selection from Judge Bork’s writings today in the Journal.

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